KA 

80 

DOCUMENTS 
DEPT. 


11  E  P  O  R  T 


lommissioners  to  Examine  the  Codes 


AUUPTKU    UV    THK 


N I N  I-7r  E  KN  TYl    L  EG  [8  L  A  TV  R  E. 


SACRAMENTO: 

T.    A.    SPRINGER,    STATE    PRINTER, 

1873. 


REPORT 


•  OF     THK 


Commissioners  to  Examine  Hie  Codes 


AlmPTKIi    JlV    THK 


]SriNETEENTH    LEGISLATURE. 


T.  A.  SPRIN<iKll STATK  I'lilNTKR. 


REPORT. 


To  Ilis  Excellency, 

Newton  Booth, 

Governor  of  California: 

The  undersigned,  heretofore  requested  by  you  "  to  serve  as  a  Commis- 
sion to  examine  the  Codes  iidopted  by  the  last  Legislature,  and  to  pre- 
pare such  amendments  as  seem  to  be  necessary',  for  the  consideration  of 
the  next  Legislature,"  resj)eetfully  report: 

That  we  organize<l  uur  Commission  on  the  twenty-first  day  of  June, 
A.  D.  eighteen  hundred  and  seventy-three,  and  have  since  that  time 
assiduously  devotetl  ourselves  to  that  work. 

We  found  the  four  Codes — the  Political  Code,  the  Penal  Code,  the 
Civil  Code,  and  the  Coile  of  Civil  Procedure — as  prepared  by  the  Com- 
missioners and  enacted  by  the  Legislature,  perfect  in  their  analysis, 
admirable  in  their  order  and  arrangement,  and  furnishing  a  com[)leto 
code  of  laws  ;  the  first  time,  we  believe,  that  such  a  result  has  been 
achieved  by  any  portion  of  the  Anglo-Saxon  or  British  races.  It  seems 
inex])licable  that  those  peo])les,  who  boast  of  being  the  most  fully 
imbued  with  the  sentiment  ox  law,  have  left  their  laws  in  the  most  con- 
fused condition,  resting  partly  in  tradition,  but  for  the  greater  ])art 
scattered  through  thousands  of  volumes  of  books  of  statutes  and  reports, 
and  thus  practically  inaccessible  to  the  mass  of  the  people.  That  Cali- 
fornia has  been  the  first  of  this  class  to  enact  a  complete  code  of  muni- 
cipal law  will  add  not  only  to  the  prosperity  of  her  people,  but  redound 
to  her  honor  as  a  State.  If  the  work  of  the  Commissioners  needed 
revision,  it  was  mostly  owing  to  obstacles  which  neither  their  ability 
nor  industry  could  overcome. 

We  found  that  the  Codes  needed  revision  more  for  the  purpose  of  har- 
monizing tlieir  respective  provisions,  than  for  any  other.  This  want  of 
complete  harmony  was  a  result  inevitable  to  the  short  period  of  time 
which  the  Commissioners  had  for  the  preparation  of  their  work.  At 
the  same  time,  it  was  found  that  many  definitions  taken  from  the  pro- 
posed Codes  of  New  York,  w^hich  had  never  been  enacted  there,  did  not 
stand  the  test  of  examination  ;  and  that  many  legislative  provisions 
would  change  our  settled  law  of  twenty-two  years'  standing,  and  not 

330G24 


for  the  bettor.  We  have  proposotl  to  cliaiig'c  many  of  these  provisions 
so  as  to  brinc^  them  into  harmony  with  tlie  law  as  heretofore  existing 
and  construed  by  our  Courts  for  nearly  a  quarter  of  a  century.  At  the 
same  time,  our  attention  has  been  called  to  defects  which,  within  the 
last  one  or  two  years,  have  for  the  first  time  made  themselves  apparent 
in  laws  which  have  stood  on  our  statute  book  for  many  j^ears,  and  which 
we  have  endeavored  to  correct,  making  as  little  change  as  possible  in 
the  general  I'ramo  of  the  statute. 

AVe  addressed  a  printed  circular  by  mail  to  the  Judges  of  the  Supreme 
Court,  to  the  District  Judges,  the  County  and  Pi-obate  Judges,  and  the 
Judges  of  other  Courts  of  record  ;  to  the  executive  officers  of  the 
State,  the  District  Attorneys,  County  Clerks,  Eecorders,  Auditors,  Treas- 
urers, Tax  Collectors,  and  Sheriffs  ;  to  the  members  of  the  bar,  and  to 
the  leading  merchants,  bankei's,  manufacturers,  agriculturists,  miners, 
and  other  persons  re])resenting  the  producing  and  material  interests  of 
the  State,  soliciting  their  suggestions  and  personal  conference  with  them 
at  our  rooms.  This  call  met  with  a  very  large  response,  and  we  received, 
both  in  writing  and  in  person,  from  the  persons  thus  addressed,  sugges- 
tions of  the  greatest  value.  When  we  had  prepared  the  drafts  of  our 
proposed  amendments  to  the  various  Codes,  we  issued  them  in  a  printed 
form  to  the  same  classes  of  persons,  again  soliciting  suggestions  and 
amendments.  This  call  was  also  largely  responded  to,  and  we  have 
good  reason  to  believe  that  ci'iticisms  upon  our  work  have  for  the 
greater  part  been  frankly  and  ingenuously  communicated  to  us.  The 
Coilitiers  have  also  greatly  assisted  us  with  their  counsels  and  experience. 

We  have  completed  our  work  upon  the  Code  of  Civil  Procedure,  Penal 
Code,  and  the  Civil  Code,  and  herewith  transmit  the  result  in  the  form 
of  three  proposed  legislative  Acts  for  the  amendment  of  those  three 
Codes  respectively.  A  glance  at  these  proposed  amendments  will  show 
their  scope  and  extent,  but  we  may  be  permitted  to  point  out  some  of 
the  most  important  objects  which  we  have  hoped  might  be  attained  by 
means  of  our  work. 

In  the  Code  of  Civil  Procedure  we  have  suggested  several  important 
amendments.  One  respecting  the  jurisdiction  of  the  Courts,  especially 
of  the  Supreme  Court  upon  appeal,  which,  if  adopted  by  the  Legislature 
and  approved  by  the  Supreme  Court,  will,  we  think,  give  relief  upon 
appeal  in  a  large  class  of  cases  affecting  property,  where  that  remedy  is 
not  now  allowed.  We  have  endeavored  to  render  the  laws  for  selecting 
jurors  more  efficient,  and  to  discard  the  rule  which  often  disqualified  the 
most  intelligent  persons  drawn  as  jurors,  because  they  had  expressed  an 
o])inion  upon  merely  outside  rumors.  We  have  proposed  to  dispense 
with  the  verification  of  pleadings  in  those  cases  where,  if  required,  there 
is  alwaj'S  an  oath  on  one  side  and  an  opposing  oath  on  the  other,  leading 
to  great  corruption  and  demoralization.  We  have  endeavored  to  sim- 
plify and  expedite  the  procedure  on  moving  for  new  trials;  to  dispense 
with  special  findings  by  the  Courts  in  cases  where  they  are  not  needed; 
to  render  the  rules  of  evidence  clearer  and  more  precise;  to  purge  defi- 
nitions from  all  i-edundancy;  to  restore  to  the  clauses  regulating  redemp- 
tion from  sales  under  judgment,  some  material  provisions  which  had 
been  left  out  by  accident,  and  to  remedy  some  defects  in  them  which 
have  only  lately  been  discovered;  and  to  make  the  provisions  regulating 
actions  against  steamers  and  boats  for  the  first  time  constitutional  under 
the  decisions  of  the  Supreme  Courts  of  California  and  of  the  United 
States. 


In  the  Penal  Code  we  have  devoted  ourselves  in  a  large  degree  to  the 
same  kind  of  work,  but  not  to  the  same  extent.  A  great  amendment 
which  we  have  proposed  relates  to  the  formation  of  trial  juries,  to  be 
composed  of  men  of  intelligence.  We  have  endeavored  to  simplify 
pleadings  in  criminal  eases  ;  to  render  a  conviction  for  embezzlement 
possible  ;  and  have  proposed  that  when  an  acquittal  shall  be  had  on  the 
ground  of  insanity,  that  the  verdict  shall  state  that  fact,  and  that  an 
inquest  may  be  then  had  as  to  the  insanity  of  the  defendant,  and  if  ho 
be  found  still  insane,  that  he  be  sent  to  the  Insane  Asj^lum. 

Our  labors  upon  the  Civil  Code  have  been  more  extensive  than  upon 
the  others.  While  we  have  thought  that  the  law  of  marriage  should 
be  simple  and  entirely  free  from  dangerous  technicalities,  wo  are  of 
opinion  that  the  least  evidence  of  such  a  contract  which  can  be  permit- 
ted is  a  public  declaration  of  the  parties.  .We  found  that  the  existing 
laws  respecting  children  under  age  exceedingly  defective,  although  they 
were  only  a  compilation  of  laws  on  the  statute  book  which  had  been 
passed  from  time  to  time.  A  girl  of  fifteen  may  now  make  a  marriage 
contract  or  a  marriage  which  renders  her  of  full  age,  emancipates  her 
from  guardianship,  and  enables  her,  if  persuaded  to  do  so  by  designing 
persons,  to  dispose  of-  all  her  projJcrL}''  and  impoverish  herself  for  life. 
All  infants,  of  whatever  age,  can  b}'  the  existing  law  put  all  their  prop- 
erty out  of  their  control  and  that  of  their  guardians,  and  cannot  recover 
it  without  restoring  the  considerjition  received,  which  may  have  already 
been  dissipated  or  stolen.  In  oilier  cases  infants  are  enabled,  for  special 
purposes,  to  make  contracts  which  may  strip  them  of  all  their  property 
and  leave  them  in  a  state  of  insolvency.  AVc  have  endeavored  to  make 
the  law  of  corporations  more  simple  and  certain.  We  have  carefully 
revised  the  laws  relating  to  shipping  and  insurance.  Wo  have  proposed 
amendments  to  the  laws  relating  to  common  carriers,  especially  to 
express  and  telegraph  companies.  We  have  revised  the  laws  relating 
to  frauds  and  conveyances,  and  the  recording  of  conveyances  and 
notices,  so  as  to  bring  them  up  to  the  range  of  decision  and  the  advanced 
business  methods  of  the  age.  Wo  have,  after  much  consultation  with 
Judges  and  the  most  experienced  members  of  the  legal  ])rofession,  ])ro- 
parod  a  series  of  amendments  to  the  Civil  Code  anil  Code  of  Civil  Pro- 
cedure, on  the  subject  of  homesteads,  which,  if  adopted,  will,  Ave  are 
persuaded,  carry  out  the  beneficent  objects  of  tliat  institution  more  etlect- 
ually  than  has  hei'ctofore  been  done.  We  have  pi'ojiosed  to  strike  out 
the  whole  Cha])ter  on  i'owers,  as  wholly  unsuited  both  to  the  wants 
and  habits  of  the  people,  I'ctaining  one  or  two  sections  by  amendment 
of  other  portions  of  the  Civil  Code,  in  places  where  the  provisions  of 
those  sections  properly  belong. 

The  Codifiers  most  wisely  determined  that  each  Code  should  be  as 
com])lete  as  possible  in  itself,  without  the  necessity  of  being  supple- 
mented by  the  consultation  of  any  other  of  the  Codes.  The  exceptions 
to  this  practice  are  mostly,  if  not  wholly  confined  to  cases  where  the 
Code  of  Civil  Procedure  is  necessarily  referred  to  for  the  mode  of  exe- 
cuting some  provision  of  law.  From  this  has  resulted  the  existence  o*^^ 
substantially  the  same  definitions  and  provisions  in  two,  and  somctimof 
in  three,  of  the  Codes,  but  oftentimes  not  expressed  in  precisely  th< 
same  terms.  In  all  these  cases  we  have  endeavored  to  select  the  bes 
form  of  expression,  and  to  render  the  language  uniform  in  all  the  Code.-- 

While  we  have  endeavored  to  render  more  complete  and  harmoniou^ 
those  Codes  which  the  Legislature  have  approved,  as   belonging  to  the 


c> 

settled  policy  of  tho  State,  the  same  motive  lias  deterred  ns  from  ]iro- 
posini;-  any  amendments  to  the  Sunday  laws  or  to  the  laws  relatinii;  to 
railroads.  Any  changes  in  those  laws  would  im])ort  a  change  of  jnibiic 
policy,  and  recommendations  of  that  kind  we  did  not  regard  as  within 
the  scope  of  our  work. 

Our  report  upon  tho  Political  Code  will  bo  submitted  hereafter. 

STEPHEN  J.  FIELD, 
J.  TEMPLE, 
JOHN  W.  DWINELLE. 
San  Francisco,  October  11th,  1873. 


I! 


<J3    lord  Bros. 

Makers 

Syracuse,  N.  Y. 

m.  JAN,  21,  1908 


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